Docket: IMM-22901-24
Citation: 2025 FC 425
Ottawa, Ontario, March 6, 2025
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
LEI CHEN |
Applicant |
and |
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA |
Respondent |
ORDER AND REASONS
[1] The Respondent brings a motion in writing pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106 to strike the Application for Leave and Judicial Review in this matter.
[2] This motion is granted, as the application is now moot. Furthermore, I agree with the Respondent that the filing of the Application for Leave and Judicial Review in this matter constitutes an abuse of process.
[3] The Applicant, Lei Chen, seeks an order in the nature of mandamus for Immigration, Refugees and Citizenship Canada (“IRCC”
) to render a decision on his application for a study permit dated March 16, 2024 (“the New Application”
). The Application for Leave and Judicial Review in this matter was filed on December 4, 2024.
[4] On December 14, 2024, the Respondent requested that the Applicant discontinue the New Application, as he had previously sought identical relief in an Application for Leave and Judicial Review dated July 29, 2024 (the “Original Application”
). The Original Application was unperfected, as the Applicant had failed to file an Application Record within 30 days of receiving notice from IRCC that a decision had not yet been rendered on his study permit application (Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 10(1)(b) (the “Immigration Rules”
)). To proceed with the Original Application, the Applicant would have been required to request an extension of time to perfect his application for leave.
[5] The Applicant replied to the Respondent on December 17, 2024, stating that he “ha[s] decided to discontinue [the Original Application] and will proceed with [the New Application].”
A Notice of Discontinuance for the Original Application was filed on December 19, 2024.
[6] On February 4, 2025, the Respondent brought this motion to strike the Application for Leave and Judicial Review of the New Application, alleging that it constituted an abuse of process. The Respondent argued that, as in Zanjani v Canada (Citizenship and Immigration), 2023 FC 1304 (“
Zanjani”
), “the sole basis for the Applicant commencing [the New Application] and then discontinuing the Original Application was to avoid the requirement to seek an extension of time to perfect the Original Application”
(at para 8).
[7] The Applicant did not file submissions in response. However, in communications with the Registry, he stated that his “visa was approved on February 13, 2025. As a result, [he] will not be proceeding with the motion at this time.”
[8] The granting of the Applicant’s study permit renders the New Application moot (1397280 Ontario Ltd v Canada (Employment and Social Development), 2020 FC 20 at paras 16-17). This is sufficient to grant the present motion.
[9] Furthermore, I agree with the Respondent that the filing of the Application for Leave and Judicial Review for the New Application constituted an abuse of process. The evidence demonstrates that the Applicant elected to discontinue the unperfected Original Application even after being explicitly requested to discontinue the New Application, in which identical relief was sought. Whether an unperfected application may proceed despite a breach of the Immigration Rules may only be determined by the Court. As stated in Zanjani, “[t]he Applicant’s actions, if unchecked, would essentially allow a party to usurp the Court’s ability to control its processes and determine whether applications should proceed in instances of non-compliance”
(at para 10).
[10] For these reasons, the Respondent’s motion to strike the Application for Leave and Judicial Review in this matter is granted. The Respondent has not sought costs and none will be ordered.
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